Nashville attorney: Thursday's execution gives “more evidence” of lethal injection problems

Posted at 1:27 PM, May 17, 2019
and last updated 2019-05-17 20:20:19-04

NASHVILLE, Tenn. (WTVF) — Thursday's execution of Donnie Johnson raises more questions about how the state carries out lethal injections, according to Nashville attorney David Raybin, who helped craft Tennessee's death penalty law.

Johnson was executed for killing his wife, Connie, in 1984. With Johnson's execution, Tennessee has now carried out four executions within a year, while the death penalty has been put on hold in other states.

Raybin reviewed media witness statements at a press conference held following Johnson's execution.

"This is more evidence to show that the lethal injection does produce some prolonged consciousness," Raybin said. "The question of whether it's painful or not is a different issue, but certainly the person was not unconscious."

Raybin says he knows many Tennesseans feel that death row inmates should in fact suffer as the death penalty is being carried out -- they are convicted killers, after all. But Raybin says revenge is not the point of the death penalty, even if Johnson may have led his wife to a horrific death.

"That does not translate into torturing the individual," Raybin said, "We do not want to become like the killer himself."

To be clear, Raybin did not say that Johnson or other death row inmates have been tortured during their lethal injection executions, but there has long been debate over the lethal injection chemicals Tennessee uses. Inmates and their attorneys have argued that the first drug -- Midazolam -- does not entirely knock out inmates, allowing them to experience the pain from the second and third drugs, which have been described as "being buried alive," or "burning alive from the inside."

In legal filings, the state of Tennessee has shunned those descriptions, calling it hyperbole.

At the center of Raybin's review were media witness statements which said Johnson was "snoring," "gasping," and "squeaking" at different times during the execution, including at times after the sedative Midazolam was administered and Riverbend warden Tony Mays performed a consciousness check on Johnson. TDOC's lethal injection protocol says the other two drugs can only be given if the inmate is found "unresponsive."

"We heard a high pitched 'ahh' kind of noise, and he stopped snoring," said media witness Travis Loller of the Associated Press.

"There was a couple of squeaks at 7:27," said media witness Chas Sisk of Nashville Public Radio.

"We heard a sharper gasp that was the kind of 'ahh' noise," said Katherine Burgess of the Memphis Commercial Appeal.

Janice Broach, a media witness with WMC-TV, said she had witnessed two other lethal injection executions decades earlier, when TDOC didn't use Midazolam.

"This one was very, very different," Broach said. "The first two that I covered, there was not much discernible sound or motion from the inmates. In this instance, there was gasping...and possibly snoring, but it went on for quite a while." Broach seemed to be referring to sounds from Johnson before the consciousness check was given.

Raybin proposes a controversial solution to determine whether inmates are feeling unconstitutional pain during lethal injection executions in Tennessee: recording the lethal injections -- something that's not allowed.

"Given the controversy of this, I think the law should be changed and allow the government to record these things in a secure manner so that would refute any allegation -- or support any allegation -- that the death is not instantaneous as advertised," Raybin said. "Having these anecdotal stories is very difficult for a court to analyze."

Raybin says the reports from the media witnesses from Johnson's execution may be used in future lawsuits against the state.

"The fact that you have press people substantiating this changes the dynamic," Raybin said.

Johnson's attorney, Kelley Henry, spoke about the drugs at the press conference on Thursday.

"I think the Midazolam worked exactly as the Midazolam is supposed to work -- which is that it doesn't work: it doesn't prevent Mr. Johnson from feeling pain."

Three federal lawsuits have been filed in Tennessee challenging the state's use of the chemicals, but courts have struck down those challenges in the past, claiming the inmates haven't been able to offer up an alternative chemical the state could use. Attorneys for the inmates argue that is a difficult -- if not impossible -- task, because state secrecy laws prohibit releasing information about drug suppliers -- including other less-controversial drugs the state may have tried to acquire.

Henry is also calling on the TDOC to revamp its lethal injection protocol. She says the warden and associate warden stood in front of the witness window in a way that made it impossible to see Johnson's head or feet.

"The way they're doing it needs to change if we're to know exactly what's happening during these executions," Henry said.

During the press conference Thursday, Henry emphasized Johnson's religious transformation behind bars.

Victims advocates, and others supporting Johnson's execution also look to the bible and point out a particular verse: an eye for an eye.

Henry called that a "cynical view" that turns its back on what she said was the true message of Christianity: redemption.

"That is a powerful message, and that is the message that I hope continues to be heard in this case," Henry said minutes after Johnson was executed. "Don was at peace."